State
of U.P & Anr Vs. Roadways Ministerial
Staff Association U.P. & Anr [1996] INSC 687 (8 May 1996)
Ramaswamy,
K.Ramaswamy, K.Faizan Uddin (J) G.B. Pattanaik (J)
CITATION:
JT 1996 (6) 208 1996 SCALE (5)18
ACT:
HEAD NOTE:
THE
8TH DAY OF MAY, 1996 Present:
Hon'ble
Mr. Justice K. Ramaswamy Hon'ble Mr. Justice Faizan Uddin Hon'ble Mr. Justice G.B.Pattanaik
K.S.Chauhan and R.B.Misra, Advs. for the appellants Aseem Mehrotra and A.P.Medh,
Advs. for the Respondents O R D E R The following Order of the Court was
delivered:
State
of U.P.& Anr. V. Roadways Ministerial Staff Association U.P.& Anr.
O R D
E R
Leave
granted.
We
have heard counsel on both sides.
The
respondent-Association filed writ Petition No.3273/82 in the High Court of
Allahabad, Lucknow Bench seeking to declare Rule 9(II) of the U.P. State
Roadways Organization (Abolition of Posts & Absorption of Employees) Rules,
1982 made in exercise of the power under Article 309 of the Constitution (for
short, the 'Rules'), as ultra vires and also for issue of a mandamus
restraining the appellants from changing their status of Government servants as
the Corporation employees. The Division Bench in the impugned order held as
under:
"In
view of what has been stated above, part or Rule 8 is valid and the absorption
rules of the employees are perfectly valid. The writ petition to the above
extent deserves to be dismissed and regarding pensionary benefits it is
allowed. A direction is issued to the opposite parties to opt those options who
were sent on deputation vide G.O. dated 7.6.1972 as amended by G.O. dated
5.7.1972 to the Corporation notwithstanding the fact that they have not
attained the age of superannuation and on the date of absorption they will
still continue in service, they will be entitled to all pensionary benefits and
for that purpose they will be treated in Government service. But for the above
relief, the writ petitions are hereby dismissed and interim order, if any
stands discharged. However, there will be no order as to costs." The
question, therefore, is: whether the view taken by the High Court is correct in
law? It is not in dispute that the members of the respondent Association had
their status as Government employees but they had come on deputation to the
Corporation. Rule 4(1) of the Rules envisages as under:
"4(1)
An employee of the U.P. State Roadways Organization, who was placed on
deputation with the Corporation and who does not wish to be absorbed in the
service of the Corporation shall, within 3 months from the notification of
these Rules in the Gazette, intimate the Secretary to Government in the
Transport Department that he does not wish to be so absorbed." Rule 5
envisages as under:
"The
relevant posts in the U.P.
State
Roadways Organization shall stand abolished,
(i)
Where the employee is deemed to have opted for absorption in the service of the
Corporation, in accordance with sub-rule (2) of rule 4, from the date of expiry
of three months from the date of notification of these rules;
(ii)
Where the employee intimates the Government his option for being not absorbed
in the service of the Corporation from the date on which the period of notice,
as provided in rule 6, expires or, as the case may be, when the services stand
terminated or dispensed with the accordance with the said rule." Rule 8
envisages as under:
"On
the absorption of an employee in the service of the Corporation, the following
consequences in regard to his services under the Government shall follow:-
(i)
Leave account of the employee shall be transferred to the Corporation and the
Corporation shall not be entitled to receive any contribution or compensation
on this account from the Government.
(ii)
Government shall bear the liability for pension,(which dies not include family
pension) and for gratuity, (if admissible to an employee), in proportion to the
qualifying service in the Government rendered by an employee before the date of
his being placed on deputation with the Corporation, the entire liability for
family pension shall be borne by the Corporation.
(iii)
In respect of an employee who did not hold any pensionable post but was a
member of an Employee's Provident Fund Scheme, the liability for contribution
required to be made by an employer, for the period prior to 1.6.1972, shall be
that of the Government and with effect from 1.6.1972, it shall be that of the
Corporation.
(iv)
An employee shall, from the date of his absorption, cease to subscribe to his
General Provident Fund account, if any, under the State Government and the
amount to his credit in the fund, together with interest thereon, according to
rules, till the month preceding the date of transfer of his account shall be
transferred to his new account to be opened under the Corporation."
A bare
reading of these Rules clearly indicates that a Government employee who was
sent on deputation and who does not wish to be absorbed in the service of the
Corporation was required to intimate within three months from the notification
of these Rules to the Government in the Transport Department that he does not
wish to be so absorbed in the Corporation. If he fails to avail of that remedy,
the Rules envisage that he shall be deemed to be absorbed as a Corporation employee,
Admittedly, none of the persons had exercised the option. As a result, by
operation of Rule 5, the employee is deemed to have opted for absorption in the
service of the Corporation, in accordance with sub-rule (2) of rule 14 from the
date of expiry of three months from the date of the notification of the Rules.
The consequence envisaged in Rule 8(ii) is that the Government shall bear the
liability for pension which does not include family pension and for gratuity,
if admissible to an employee, in proportion to the extent of the period of
service with the Government rendered by an employee before the date of his
being placed on deputation with the Corporation. The entire Liability for the
family pension shall be borne by the Corporation. It would thus be clear that
the three months' cut off period given under the Rules from the date of the
publication of the Rules is the appropriate and reasonable cut off period. Any
employee who failed to avail of the same, by giving notice to the Secretary in
Transport Department that he did not wish to be absorbed as Corporation
employee, must be deemed to be an employee of the Corporation. Corporation,
therefore, is liable to bear the liability of a deemed employee from the date
mentioned in Rule 8(ii) read with Rule 4(2) and Rule 5 thereof.
Resultantly,
such employees are not entitled to cont the period from the date of the
deputation till date of absorption to be the Government employee for
computation of the pensionary benefits in their favour.
The
appeal is accordingly allowed and the writ petition stands dismissed. But in
the circumstances without costs.
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